A Practical Guide to Section 85 Certificates in Namibia

Namibia's legal profession is, by design, a closed one. Section 3 of the Legal Practitioners Act 15 of 1995 provides that no person may practise as a legal practitioner in Namibia except in accordance with the Act, and section 21(1)(c) backs this up with a criminal sanction for anyone who conducts litigation on another's behalf without being properly enrolled.

Section 85 of the Act is the one real exception. Where a matter's complexity or special circumstances call for a lawyer with particular expertise who is not resident in Namibia, the Chief Justice — or the Judge-President in the Chief Justice's absence — may issue a certificate authorising that lawyer to act, but strictly in relation to the specific matter at hand.

For businesses, property developers and associations who occasionally need specialist cross-border expertise, understanding how this process works — and how strictly its timelines are enforced — can make the difference between a smooth engagement and a costly procedural setback.

What the Certificate Actually Does

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Section 85(2) allows a certificate to be granted where it is fair and reasonable, given the complexity of the matter, for a litigant to obtain the services of a non-resident lawyer with special expertise. Section 85(3) then limits that certificate strictly to the matter for which it was granted — it is not a general licence to practise in Namibia and does not extend to other matters, however similar.

The Chief Justice and Judge-President's 2012 Practice Directive sets out exactly how such an application is made.

The Application at a Glance

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14 court days' notice is required, at minimum, before the hearing. The founding affidavit must satisfy 7 requirements set out in the Practice Directive. And the certificate is granted for 1 matter only — it is never a general licence to practise.

How to Apply

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In practical terms, the founding affidavit must set out: the particulars of the parties and case number; the date and court of the hearing; the legal practitioners of record; the reasons the foreign lawyer's expertise is needed and why it is fair and reasonable for the litigant to use that lawyer; and the foreign lawyer's full details, qualifications and proof of admission and good standing in another jurisdiction. Applications are addressed to the Chief Justice, or the Judge-President if the Chief Justice is unavailable. Where an application is made out of time, a further affidavit must explain why.

The 14-court-day figure is the minimum notice the Practice Directive requires before the hearing — but it is not, in practice, a safe deadline for when the certificate itself needs to be in place. Because any substantive involvement by the foreign lawyer before that point can amount to practising law without authority, the more reliable approach is to apply and wait for the certificate to be issued before that lawyer does any work on the matter at all.

Certificates Are Not Retrospective

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One principle is worth emphasising for anyone coordinating a cross-border legal team: a section 85 certificate takes effect from the date it is granted, not from the date the application was made or the date the underlying work began. The Supreme Court has also confirmed that “practising law” for these purposes is broader than courtroom appearances — it extends to preparing pleadings, giving advice and drafting heads of argument.

The Supreme Court of Namibia has endorsed a well-known definition of what this actually covers:

“The practice of law is not limited to appearing in court, or advising and assisting in the conduct of litigation, but embracing the preparation of pleadings and other papers incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal advice to clients . . . It embraces all advice to clients and all actions taken for them in matters connected with the law.”

This was reaffirmed in Nieuwoudt v Finkenstein Home Owners' Association (SA 3/2023) [2026] NASC (23 January 2026), where the Supreme Court confirmed that a certificate operates prospectively only and does not validate work carried out before it is granted.

“A certificate takes effect from the date it is granted — not from the date the work began.”

A Practical Tension Worth Flagging

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There is an obvious question this raises. The Practice Directive requires the founding affidavit to state the date of the hearing and the court in which the matter will be called, and the 14-court-day countdown runs from that date. If the safer practical position is that no substantive work should happen before the certificate is granted, how can an application — complete with a hearing date — be lodged before any work has been done to get the matter to the point where a hearing date even exists?

This is a genuine sequencing tension, and neither the 2012 Practice Directive nor the recent case law resolves it directly. The Directive assumes a matter is already enrolled and dated by the time a foreign lawyer's certificate becomes relevant; it was not written with the more expansive reading of “practising law” that the courts have since confirmed. In practice, most matters reach a hearing date only after some initial procedural work — filing, set-down, or an appeal process — has already taken place.

The Bottom Line

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A section 85 certificate is not paperwork to secure alongside the real work; it is the precondition for it. Building the 14-court-day lodging requirement into your timeline from day one, and ensuring no substantive work begins before the certificate is granted, is the simplest way to avoid the kind of procedural setback that recent case law shows Namibian courts take seriously.

Because this is an evolving and imperfectly settled area, the most reliable approach for the Namibian instructing attorney is to engage with the foreign lawyer on the certificate timeline from the very first conversation — before agreeing to any scope of work — and, where timing is tight or unusual, to raise the sequencing directly with the Registrar's office rather than assume how it will be treated.

Robin Myburgh

Associate – Litigation Department

Engling, Stritter & Partners

This article is provided for general informational purposes only and does not constitute legal advice. It does not create an attorney-client relationship between the reader and Engling, Stritter & Partners. It should not be relied upon as a substitute for advice from a qualified legal practitioner on the specific facts of your matter. Legislation, court rules and case law referred to here may be amended or overturned after publication.

© Engling, Stritter & Partners, 2026. All rights reserved.